Ohlin Response to Rona

by Kevin Jon Heller

Jens Ohlin has continued the conversation about IHL and IHRL at LieberCode. Here is a snippet, self-servingly chosen because I want to comment on it:

It strikes me as curious that human rights activists are so quick to cabin CIL application of the IHL rules of IAC to NIAC. To my ear, it is one of the great advancements of the last few decades: that the rules of warfare must be respected and that no nation can ignore them simply because the armed conflict is internal. (Incidentally, this was also the great fault of the early Bush Administration: to audaciously proclaim that the armed conflict with al-Qaeda was unconstrained by IHL and LOW principles.) It also strikes me that it is one of the great advancements that ICL case law has given us. Why do some human rights activists resist this laudable move? I suppose they want to fight the expansion of IHL norms because, in their absence, IHRL norms can swoop in to fill the gap, and in the process better protect the rights of the vulnerable. I’m not sure I share this strategic vision, though my skepticism does not make their view wrong. (Ultimately, I have more faith that IHL, as a body of law, will make the situation on the ground better.) The legal fight, though, is about the existence of the underlying IHL norm.

I don’t want to “cabin” the customary application of IHL rules of IAC to NIAC, although I am less convinced than Jens that there is sufficient state practice to justify doing so. What I am opposed to is the U.S. practice: applying only those rules of IAC that provide it with authority to detain, while ignoring all of the rules that limit its authority to treat the detained however it likes. It wants to analogize non-state actors to the regular armed forces in IAC (such as through the notion of co-belligerency) — but it has no intention of treating anyone thereby detained in a NIAC as a POW. It wants to detain civilians who are security risks by analogy to the Fourth Geneva Convention — but it has no intention of treating those civilians in accordance with GC IV. For the U.S., IHL is always heads it wins, tails the detainee loses. I don’t accept that.

March 24, 2015Responding to Rogier Bartels About Perfidy at Just Security
My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Secur...